Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.

FRASER JA: The appellant agrees that it ought to be ordered to provide security for costs. The only issue concerns the quantum. The respondent to the appeal, who is the applicant for security, has supplied evidence in the form of affidavits from an experienced solicitor which produce a figure for the costs and outlays the respondent could incur in the conduct of the appeal which total $134,946 before GST. The GST would not be able to be recovered by the respondent for reasons set out in the material. GST is added to that figure to produce a total of $148,946.

The affidavits give the impression that this cost is likely to be actually incurred by the respondent in defending the appeal. It is not sworn that it is likely to be recovered pursuant to a costs order on a standard basis. I am not persuaded that there is any ground for assessing the amount on an indemnity basis. It should be assessed on a standard basis.

The affidavit by Mr Mertzer for the appellant is said to be deficient because it does not set out Mr Mertzer’s experience. That is not an unreasonable proposition, but I would expect Mr Mertzer, as asolicitor, not to depose to these matters unless he was able to depose to them. However, his estimates of the time expected to be taken for some matters seem to me to be perhaps unrealistically low. Another point is that he deposes to what, in his experience, costs of counsel and solicitor would be allowed in amounts which are lower than those upon which the respondent relies.

It is not possible to conduct an arithmetical or scientific exercise, but taking these various considerations into account, together with others mentioned in argument which seem to me to be much less significant, an appropriate figure for security for costs is $85,000. That is the amount I propose to order.

The order will be that the appellant provide security for costs in the amount of $85,000 in a form satisfactory to the registrar by 4 pm on the 14th of August 2018.

...

FRASER JA: This is an application by Mr Cooper to be joined as a party to this appeal as an appellant. In essence, what was decided at first instance was that a purported loan by the appellant to a company known as Passage was a sham, so that there was nothing secured under the mortgage granted by Passage to the appellant as purported security for that loan.

Mr Cooper’s case for joinder is that in the course of the trial Judge’s decision that the purported loan was a sham, his Honour found that a related document, a deed of settlement purportedly made on the 23rd of September 2016, was also a sham. That document recites as the parties Passage, Mr Cooper, and another company called D & M Technologies Proprietary Limited. It is recited that Passage agreed to pay Cooper $6,800,000, Cooper acknowledged that $4,150,000 had been discharged by or on behalf of Passage, and Cooper acknowledged that the balance had been discharged by a different company. In the operative part, there is what appears to be aboilerplate clause providing discharges and releases mutually between Cooper, Passage, and D&M Technologies Proprietary Limited.

There is no material before me to establish what prejudice Mr Cooper might suffer by the finding of the trial judge that the deed of settlement is a sham. None of the parties to the deed were parties to the litigation in the trial division. Prima facie at least, none of the parties to the deed are bound by the orders made by the trial judge or bound by findings made in their absence from the proceedings. On the face of the deed, if it is not a sham, Mr Cooper has been paid the amount recited. As to the discharges and releases, there is no material to establish that anything relevant would have been discharged and released if the deed were not a sham. I am not persuaded that Mr Cooper’s interests are adversely affected in a way which require his joinder in this appeal.

Consequential orders following from determination of separate question. Respondent ordered to prepare and lodge with Land Titles Office the documents necessary to effect the removal of mortgages by 13 June 2018 (failing which the Registrar will secure releases of mortgages through execution by the Crown Solicitor); application otherwise dismissed; respondent to pay applicant's costs on the indemnity basis: Henry J.

QCA Interlocutory Judgment

[2018] QCA 165

27 Jul 2018

Application for security for costs granted; Mr Cooper's application to be joined to the appeal as an appellant refused: Fraser JA.

Appeal Status

Please select (using the checkboxes) which search results you would like to add to a list.

The Queensland Judgments website is a joint initiative of the Incorporated Council of Law Reporting
for
the State of Queensland and the Supreme Court of Queensland Library Committee, with the support of
Queensland’s courts and tribunals, and the technical assistance of Optimised and CaseIQ.

Important Note: All use of this website is subject to Terms of Use, which
includes important disclaimers and other terms and conditions. Users are respectfully requested to
read
these terms before using this website. These terms were last updated on 1 July 2016. This website is
also operated pursuant to a Privacy Policy.
To obtain access to the Queensland Reports on this website, registration is required. Registration
is
free of charge and can be terminated at any time.